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Québec (Commission des norms du travail) v. Asphalte Desjardins inc., is a recent Supreme Court of Canada decision which comes to us out of the Québec courts.

This appeal, which was allowed, held in favour of the Commission des normes du travail, which was claiming indemnity equivalent to a notice period of three weeks, on behalf of an employee. In this decision by Justice Wagner, the Supreme Court balances the rights of the parties using both the Civil Code of Québec (the “Code”) and the Act respecting labour standards (the “Act”).

In this case, the employee had been with Asphalte Desjardins inc, the employer, for approximately 14 years. On February 15, 2008, the employee gave the employer a three week notice of resignation in which he indicated the date of resignation as being March 7, 2008. After failing to convince the employee to stay with the company, the employer proceeded to terminate the employment contract on February 19, 2008.

This appeal raises the question of whether an employer can renounce to the notice period given by an employee, in other words, can the employer unilaterally terminate a contract without giving notice to the employee once an employee has given his notice of resignation?

The Supreme Court confirmed that the answer to this question is no. Section 82 of the Act stands for the principle that an indeterminate contract of employment is not immediately terminated upon notice by the employer. The Act also provides that the duration of the notice that must be given by the employer is based on the employee’s years of service. Absent such notice, the employer must provide an indemnity equivalent to such notice period. Section 2091 of the Code, which also applies to indeterminate employment contracts, also imposes that a notice of termination be given, however, the Code imposes this obligation on all parties to the contract, not simply to the employer. Hence, these two statutes must be read and interpreted harmoniously when applying them to an indeterminate employment contract.

The effect of giving notice does not in and of itself put an end to the parties’ respective obligations. Indeed, these obligations continue on as if no notice had been given until such time as the date of resignation given by the employee arrives. This principle also applies to the employer’s obligation to give notice. After receiving a notice of resignation from an employee, the employer’s obligation to provide notice in accordance with the Act and the Code is still very much a live one.

In sum, as stated by Justice Wagner, “the notice announces the termination of the contract of employment: it does not authorize a departure from the principle that a party may not unilaterally cease performing its contractual obligations, to the detriment of the other party’s rights”.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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